Court filing

RESPONSE In Opposition to by USA as to David Staveley re 87 MOTION… — PPP Attempt Conspiracy Legal Filings (Dkt. 117)

No. 1:20-cr-00074-WES-LDA · Doc. 117 · Docket on CourtListener

Summary

The United States' response in opposition to David Staveley's motion under 28 U.S.C. § 2255 to vacate his sentence, in United States v. David Staveley, No. 1:20-cr-00074-WES-LDA, in the U.S. District Court for the District of Rhode Island, filed December 1, 2022 as Document 117. The motion claims that trial attorney Jason P. Knight provided ineffective assistance in negotiating and advising him to accept a plea bargain. The response sets out facts from the Presentence Report, including four PPP loan applications submitted to BankNewport in April 2020, and his failure to appear at a June 2, 2020 hearing. It states that he pleaded guilty on May 17, 2021 to counts 1 and 7 and was sentenced on October 7, 2021 to 56 months of incarceration, and argues that he has not overcome the presumption that Knight's actions were reasonable. It is signed by Assistant U.S. Attorney Lee H. Vilker.

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Case 1:20-cr-00074-WES-LDA Document 117 Filed 12/01/22 Page 1 of 16 PageID #:
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UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND

UNITED STATES OF AMERICA, )
)
v. )
) CR No. 20-74-MSM
DAVID STAVELEY, )
Defendant. )
)

UNITED STATES’ RESPONSE IN OPPOSITION TO
PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE,
OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

Predicated on a claim that his trial attorney, Jason P. Knight, Esq., provided him with

ineffective assistance of counsel in the course of negotiating and advising him to accept a plea

bargain in the above-captioned matter, petitioner David Staveley (“defendant” or “Staveley”)

now seeks to vacate his convictions for bank fraud conspiracy and failing to appear in court as

required. For the reasons set forth below, the United States of America (the “government”)

hereby opposes Staveley’s motion to vacate and asks that the Court deny it.

A. Factual Background

In order to orient the Court to the context of defendant’s § 2255 claims, the government

sets forth the version of the facts contained in the Presentence Report prepared by Probation in

this case (ECF No. 46, at ¶¶ 17-27):

David Staveley (“Staveley”) and his co-conspirator David Butziger (“Butziger”)
conspired to defraud BankNewport by submitting false and fraudulent loan applications
under the federal Paycheck Protection Program (“PPP”). The PPP was enacted by
Congress on March 29, 2020, as part of the Coronavirus Aid, Relief, and Economic
Security (“CARES”) Act designed to provide emergency financial assistance to the
millions of Americans who are suffering the economic effects caused by the COVID-19
pandemic. The PPP program authorized billions of dollars in forgivable loans – that is
loans that would be repaid to the banks by the government instead of the borrower -to
small businesses for job retention and certain other expenses.

Staveley and Butizger conspired to submit four fraudulent PPP loan applications to
BankNewport in April 2020. In each of these applications, Staveley and Butziger falsely
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represented those different businesses had significant numbers of employees and large
monthly payrolls when they did not. First, on or about April 6, 2020, Staveley, in the
name of his brother Gregg Sanborn, submitted a loan application under the PPP to
BankNewport on behalf of Oakland Beach Restaurant Group LLC, d/b/a “Top of the
Bay.” The loan application was in the amount of $185,750 and fraudulently represented
that Oakland Beach Restaurant Group, LLC had 26 employees and an average monthly
payroll of $53,000 at the Top of the Bay restaurant in Warwick, R.I. In truth and in fact,
although Staveley had been in negotiations to purchase the Top of the Bay restaurant, he
never did so and had no employees and no payroll whatsoever.

On or about April 14, 2020, Staveley submitted to BankNewport an IRS 941 Form in
support of the PPP application of Oakland Beach Restaurant Group LLC, d/b/a “Top of
the Bay.” The 941 Form fraudulently listed wages for Oakland Beach Restaurant Group,
LLC, to be $158,723.52 for the first quarter of 2020 when, in truth and in fact, no wages
were paid whatsoever in this period. Emails between Butziger and Staveley show that
Butziger knowingly created the false and fraudulent 941 Form that Staveley submitted to
BankNewport.

On or about April 6, 2020, Staveley, in the name of his brother Gregg Sanborn, submitted
a loan application under the PPP to BankNewport on behalf of Apponaug Restaurant
Group LLC, d/b/a “Remington House.” The loan application was in the amount of
$144,050 and fraudulently represented that Apponaug Restaurant Group, LLC had 18
employees and an average monthly payroll of $46,000. In truth and in fact, the
Remington House restaurant had been closed since November 2018 and Apponaug
Restaurant Group, LLC had no employees whatsoever.

On or about April 10, 2020, Staveley submitted to BankNewport an IRS 941 Form in
support of the PPP application of Apponaug Restaurant Group LLC, d/b/a “Remington
House.” The 941 Form Staveley fraudulently listed wages for Apponaug Restaurant
Group LLC to be $138,000 for the first quarter of 2020 when, in truth and in fact, no
wages were paid whatsoever in this period. Emails between Butziger and Staveley show
that Butziger knowingly created the false and fraudulent 941 Form that Staveley
submitted to BankNewport.

On or about April 6, 2020, Butziger submitted a loan application under the PPP to
BankNewport in his own name on behalf of an unincorporated entity that he called Dock
Wireless. The loan application was in the amount of $105,381.50 and fraudulently
represented that Dock Wireless had 7 employees and an average monthly payroll of
$42,152.60. In truth and in fact, Dock Wireless had no employees whatsoever and no
wages were ever paid by Dock Wireless.

On or about April 6, 2020, Staveley, in the name of his brother Gregg Sanborn, submitted
a loan application under the PPP to BankNewport on behalf of New Flat Penny LLC,
d/b/a “On The Trax,” a restaurant in Berlin, MA. The loan application was in the amount
of $108,777.50 and fraudulently represented that New Flat Penny, LLC had 22
employees and an average monthly payroll of $36,000. In truth and in fact, although New

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Flat Penny did own and operate the On the Trax restaurant in 2019 and the beginning of
2020, the On The Trax restaurant was closed permanently on about March 10, 2020 after
its liquor license was revoked. New Flat Penny, LLC had no employees whatsoever when
the PPP application was submitted.

On or about May 5, 2020, defendant David Staveley appeared before the Hon.
Magistrate Judge Lincoln D. Almond, District of Rhode Island, on a Criminal Complaint
charging Staveley with federal charges related to the PPP fraud. The Court released
Staveley on a personal recognizance bond and set numerous conditions for
Staveley’s pretrial release. On or about May 11, 2020, the Court temporarily modified
defendant’s pretrial release conditions to include the conditions of home confinement
with electronic monitoring.

On or about May 20, 2020, the Court scheduled a preliminary hearing and a hearing on
the Government’s motion to modify defendant’s pretrial release conditions to take place
on June 2, 2020.

On or about May 26, 2020, defendant Staveley removed the electronic monitoring
device from his body and fled. In an effort to deceive law enforcement into believing that
he had died, Staveley staged his suicide by, among other things, leaving suicide notes
with associates and in his car, which he left unlocked and parked by the Atlantic Ocean.
27. From on or about May 26, 2020, to July 23, 2020, in an effort to avoid apprehension,
defendant Staveley traveled to various States using false identities and stolen license
plates. He was apprehended by the United States Marshals Service in Alpharetta, Georgia
on July 23, 2020. Defendant Staveley did not appear as directed at the court hearing
scheduled on June 2, 2020.

B. Travel of the Case

1. Preindictment. Based on the above conduct, the government sought an arrest warrant

and complaint for the defendant and his codefendant. (ECF No. 3). The defendant was arrested

on that warrant on May 5, 2020. Initially, the defendant was released (by Magistrate Judge

Almond) on unsecured bond with conditions. The Court appointed attorney George J. West to

represent the defendant. On May 29, 2020, the Court admitted attorney Mark Josephs pro hac

vice to represent the defendant. Attorney West was allowed to withdraw.

On June 2, 2020, the defendant failed to appear for a preliminary hearing and fled the

jurisdiction. An arrest warrant was again issued for the defendant.

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On July 24, 2020, the defendant was arrested in Atlanta in the Northern District of

Georgia. On August 5, 2020, the defendant appeared before Judge Almond via video, who

ordered him detained.

On September 2, 2020, a federal grand jury indicted the defendant on seven counts:

conspiracy to commit bank fraud; three counts of bank fraud; one count of making false

statements to the SBA in reference to a loan application; aggravated identity theft; and failing to

appear in court as required.

2. Postindictment. Attorney Josephs moved to withdraw from the matter on January 6,

2021. Shortly thereafter, Judge Almond granted that motion, and attorney West was reappointed

as Mr. Staveley’s attorney. On March 1, 2021, attorney Jason P. Knight entered his appearance

for the defendant, and Mr. West was again allowed to withdraw.

Change of Plea and Sentencing. On May 17, 2021, pursuant to a plea agreement (ECF

No. 42), Staveley pled guilty to counts 1 and 7 of the indictment. During that hearing, he agreed

that the following facts, recited by the prosecutor, were true:

This Defendant, David Staveley, and his co-conspirator, David Butziger, conspired
to defraud Bank Newport by submitting false and fraudulent loan applications under
the federal Paycheck Protection Program that was created by Congress in response to
the coronavirus crisis.

The PPP program or the Paycheck Protection Program authorized billions of dollars
in forgivable loans, that is, loans that would be repaid to the banks by the
Government instead of the borrower, the small businesses, for the purpose of job
retention and certain other expenses. Mr. Staveley and Mr. Butziger conspired to
submit four fraudulent PPP loan applications to Bank Newport in April of 2020. On
each of these applications, Mr. Staveley and Mr. Butziger falsely represented that
different businesses had significant numbers of employees and large monthly
payrolls when they did not.

First, on April 6th of 2020, Mr. Staveley, in the name of his brother, Greg Sanborn,
submitted a loan application under the PPP to Bank Newport on behalf of an entity
called Oakland Beach Restaurant Group LLC, doing business as Top of the Bay.
The loan application was in the amount of $185,750 and fraudulently represented

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that Oakland Beach Restaurant Group LLC had 26 employees and an average
monthly payroll of $50,000 at the Top of the Bay restaurant in Warwick.
In truth, although Mr. Staveley had been in negotiations to purchase the Top of the
Bay restaurant, he never did so and had no employees or payroll at all at this
location. In furtherance of this application, Mr. Staveley submitted to Bank Newport
an IRS 941 form. That form fraudulently listed wages for Oakland Beach Restaurant
Group to be $158,723.52 for the first quarter of 2020 when, in fact, no wages were
paid during this period. Co-Defendant David Butziger knowingly created this false
and fraudulent 941 form that Mr. Staveley then submitted to Bank Newport.

Also, on or about October -- excuse me, on or about April 6th of 2020, Mr. Staveley,
again in the name of his brother, Greg Sanborn, submitted a loan application under
the PPP to Bank Newport on behalf of the entity Apponaug Restaurant Group LLC,
doing business as Remington House. The loan application was in the amount of
$144,050 and fraudulently represented that Apponaug Restaurant Group had 18
employees and an average monthly payroll of $46,000. In truth and in fact, the
Remington House restaurant had been closed since November of 2018 and
Apponaug Restaurant Group had no employees. In furtherance of his application,
Mr. Staveley submitted to Bank Newport an IRS 941 form that fraudulently listed
wages of that entity, Apponaug Restaurant Group, to be $138,000 for the first
quarter of 2020 when, in fact, no wages had been paid. The Co-Defendant, David
Butziger, knowingly created this false and fraudulent 941 form that Mr. Staveley
then submitted to Bank Newport.

On or about April 6th of 2020, Mr. Butziger submitted a loan application under the
PPP to Bank Newport in his own name on behalf of an unincorporated entity that he
called Dock Wireless. That loan application was in the amount of $105,381.50 and
fraudulently represented that Dock Wireless had seven employees and an average
monthly payroll of $42,152 when, in fact, Dock Wireless had no employees at all.

Finally, on or about, again, April 6th of 2020, Mr. Staveley, in the name of his
brother, Greg Sanborn, submitted a loan application under the PPP to Bank Newport
on behalf of New Flat Penny LLC, doing business as On The Trax, a restaurant in
Berlin, Massachusetts. The loan application was for $108,777.50 and fraudulently
represented that New Flat Penny had 22 employees and an average monthly payroll
of $36,000. In truth, although New Flat Penny did own and operate the On The Trax
restaurant in 2019 and the beginning of 2020, the On The Trax restaurant was closed
permanently on or about March 10th of 2020 after its liquor license was revoked.

On or about May 5th, 2020, Mr. Staveley appeared before Honorable Magistrate
Lincoln D. Almond in this court on a criminal complaint charging him with offenses
related to his PPP fraud. The Court set Mr. Staveley – released Mr. Staveley on
personal recognizance bond and set numerous conditions for Mr. Staveley's pretrial
release. On or about May 11th, 2020, on a motion – on motion from the
Government, the Court modified Defendant's pretrial release conditions to include
the conditions of home confinement with electronic monitoring. On May 20th of

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2020, the Court scheduled a preliminary hearing and a hearing on the Government
motion to modify the Defendant's pretrial release conditions and scheduled that
hearing to take place on June 2nd of 2020.

On May 26th of 2020, Mr. Staveley removed the electronic monitoring device from
his body and fled. In an effort to deceive law enforcement into believing that he had
died, Mr. Staveley staged his suicide by, among other things, leaving suicide notes
with associates and family members and in his car, which he left unlocked and
parked by the Atlantic Ocean.

From on or about May 25th of 2020 to July 23rd of 2020, in an effort to avoid
apprehension, Mr. Staveley traveled to various states in this country using false
identities and stolen license plates. Mr. Staveley did not appear as directed at the
court hearing that had been scheduled for June 2nd of 2020. An arrest warrant was
issued for the defendant, who was apprehended by the United States Marshals
Service in Alpharetta, Georgia, on July 23rd of 2020.

During the defendant’s change of plea hearing, the defendant admitted that all of the

above facts were true. See ECF No. 68, at pp. 25-26. The Court set sentencing for August 2,

2021, but due to continuances requested by the defendant and rescheduling done by the Court,

sentencing ultimately took place on October 7, 2021. Following the Sentencing Guidelines, the

Court sentenced the defendant to a total of 56 months incarceration, with three years of

supervised release to follow.

3. The 2255 and Attorney Knight’s Response. On August 29, 2022, the defendant filed

the instant petition pursuant to 18 U.S.C. §2255. The defendant put forth four grounds in his

petition, for the most part asserting ineffective assistance of counsel claims. His claims appear to

argue that counsel was ineffective in advising the defendant to plead guilty, and in preparation

for sentencing.

On November 4, 2022, at the request of the government, attorney Knight responded in

writing (in a letter to the assigned AUSA in this case) as to the allegations being put forward by

the defendant in his petition. That letter is attached as Exhibit 1 to this memorandum, and is

summarized in the following paragraphs:

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Discovery Review. Knight noted that he entered his appearance for the defendant on

March 1, 2022. Given the nature of the allegations in the indictment (white collar PPP fraud),

Knight reviewed an “enormous amount” of discovery, involving many hours of review. This

review took place primarily in March and April of 2021. Knight visited the defendant (who was

detained at Wyatt) on ?# occasions? During those visits, Knight discussed the strength of the

evidence and the legal issues at length with the defendant. Knight also addressed issues of

mitigation and the role of a previous attorney in his discussions with the defendant.

On April 20, 2022, and pursuant to Wyatt’s rules for evidence distribution and viewing

by defendants, Knight arranged for the delivery of all of the discovery in the case to Mr.

Staveley. Under Wyatt’s rules, it is the defendant’s obligation to make arrangements with Wyatt

to view the discovery. The defendant did not make these arrangements in a timely fashion.

Plea Negotiations. At one point, the prosecutor offered a plea arrangement to Knight –

with a deadline to reply - but Knight responded that he needed more time to review the evidence.

The prosecutor acceded to that request. Subsequently, the prosecutor made another plea offer to

Knight that was more favorable to the defendant, including an extended deadline and the offer to

dismiss five of the seven counts of the indictment. The offer Knight obtained included the

dismissal of count 8, which charged the defendant with aggravated identity theft (18 U.S.C.

§1028A), which carries a mandatory consecutive two-year prison sentence.

Knight visited the defendant on two occasions to discuss this plea offer, May 4 and 6,

2021. On the May 4th visit, Knight reviewed in detail several key pieces of evidence, including:

 A video recording of the cooperating codefendant’s proffered testimony;

 Police reports;

 Emails; and

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 Financial documents.

Mr. Knight informed the defendant of his opinion that the defendant would most likely be

convicted of the fraud charges after trial, and that he would almost certainly be convicted of the

failing to appear charge, which also carried a mandatory consecutive sentence. He also informed

the defendant that if he accepted the plea offer, the aggravated identity theft charge would be

dismissed, and that his sentence would be subject to the advisory sentencing guidelines. Finally,

he noted that the sentencing judge was a former public defender, who might be open to the

defendant’s claims of experiencing trauma from alleged assaults by a correctional officer during

a prior period of incarceration for a different charge.

Knight and the defendant made plans to meet again on May 6, 2022. On that date, the

defendant told Knight he had decided to sign the plea agreement, which he did. Knight

explained that, despite signing that document, the defendant was free to change his mind at any

time prior to changing his plea. Thereafter, on May 17, 2022, the defendant appeared before the

Court and, pursuant to the plea agreement negotiated by Mr. Knight, pled guilty to counts 1

(bank fraud conspiracy) and 7 (failing to appear in court) of the indictment.

Sentencing and Appellate Court proceedings. On October 7, 2021, Judge McElroy

sentenced the defendant to 56 months in prison and 3 years of supervised release.

After being sentenced, the defendant appealed his conviction to the First Circuit Court of

Appeals. Primarily, the defendant claimed that the appeal waiver agreed to in the plea agreement

was not enforceable due to the ineffective assistance of his counsel. On August 2, 2022, the First

Circuit dismissed the appeal without prejudice, holding that the defendant needed pursue a §2255

petition before the district court first prior to filing an appeal. United States v. Staveley, 43 F.4th 9

(1st Cir. 2022). Thereafter, on August 29, 2022, the defendant filed in this court his §2255

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petition.

As to the defendant’s waiver of appeal in this case, the First Circuit concluded that the

defendant’s plea was knowing and voluntary. “Here, the plea agreement and the transcript of the

change-of-plea colloquy make manifest that the defendant’s waiver of appellate rights is

presumptively valid. The plea agreement contains a clear statement elucidating the waiver and

delineating its scope…. The change-of-plea colloquy reflects that the district court’s questioning

anent the waiver was unimpugnable.” Staveley, 43 F.4th at 14.

C. Defendant’s § 2255 motion should be denied as meritless.

In his § 2255 motion (ECF No. 79),1 Staveley raises four claims relating to Attorney

Knight’s performance. The claims overlap with each other to a great extent. Some are explicitly

refuted by the existing record; others are easily rejected after applying a modicum of common

sense. After setting forth the relevant legal standards, the government will summarize and

discuss each claim as defined by its factual assertions, and will combine defendant’s scattered

claims involving the same allegation into a single assertion where it makes sense to do so.

1. Legal standards

At the outset it is useful to bear in mind some of the legal principles that form the

framework for deciding Staveley’s motion to vacate. Section 2255 of Title 28 acts as a

“‘surrogate for the historic writ of habeas corpus.’” Rivera-Rivera v. United States, 844 F.3d

367, 372 (1st Cir. 2016) (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)). “A

petitioner in federal custody may seek post-conviction relief if, inter alia, “his sentence ‘was

imposed in violation of the Constitution or laws of the United States’ or ‘is otherwise subject to

1
The government cites to the motion to vacate according to the pages assigned in the ECF
system rather than the pages of the document itself.
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collateral attack.’” Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (quoting 28 U.S.C.

§ 2255(a)) (italics added).

As petitioner, Staveley bears the burden of proof. Id. (citing David v. United States, 134

F.3d 470, 474 (1st Cir. 1998)). In determining whether Staveley has met his burden, this Court

does not have to assign any weight to “conclusory allegations, self-interested characterizations,

discredited inventions, or opprobrious epithets.” United States v. McGill, 11 F.3d 223, 225 (1st

Cir. 1993). Moreover, having presided over prior proceedings in the case, the Court “is at liberty

to employ the knowledge gleaned during [those] proceedings and make findings based thereon

without convening an additional hearing.” Id. It is thus appropriate for this Court to determine

the merits of Staveley’s motion on the papers without holding an evidentiary hearing. Id.

To prevail on his claims of ineffective assistance of counsel, Staveley must meet both

parts of the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984).

Under the first, or “performance,” prong, Staveley has to prove that his defense attorney’s

representation fell below an objective standard of reasonableness, as judged by reference to

prevailing professional norms, and as viewed as of the time of defense counsel’s actions rather

than through the lens of hindsight. Id. at 687-90. “Reviewing courts ‘must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance’ and represents sound trial strategy.” Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011)

(quoting Strickland, 466 U.S. at 689). To overcome the strong presumption that his defense

counsel acted competently, Staveley must demonstrate that, given the facts he knew at the time,

any strategic choices Attorney Knight made were “‘so patently unreasonable that no competent

attorney would have made [them].’” United States v. Rodriguez, 675 F.3d 48, 56 (1st Cir. 2012)

(citation omitted).

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The second, so-called “prejudice,” prong requires Staveley to demonstrate that there is a

reasonable probability that, but for his attorney’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694. This Court does not have to

address both of the Strickland prongs if the evidence supporting either one of them falls short.

Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007) (citing Strickland, 466 U.S. at 697).

The Strickland standards apply in the context of a guilty plea as well as a trial. United

States v. Cobb, 350 F. Supp. 3d 64, 70 (D.R.I. 2018) (citing Hill v. Lockhart, 474 U.S. 52, 57

(1985). The first prong of Strickland is “just a restatement of the standard of attorney

competence” the government has already outlined. Id. (citing Hill, 474 U.S. at 58). The

prejudice prong of Strickland’s analysis focuses in the guilty plea context on whether defense

counsel’s constitutionally ineffective performance created the reasonable probability that, but for

the attorney’s errors, defendant would have refused to plead guilty and would have insisted

instead on going to trial. Id. at 70-71 (citing Hill, 474 U.S. at 59, and Lafler v. Cooper, 566 U.S.

156, 163 (2012)). Here, it should be noted, the defendant never states that he would have

pursued the option of going to trial. Furthermore, because of the high value that the judicial

system places on finality, the scope of a § 2255 motion based on the validity of a conviction

under a guilty plea is “‘ordinarily confined to whether the underlying plea was both counseled

and voluntary.’” Id. at 71 (citations omitted).

2. Analysis of Staveley’s § 2255 Claims

(a) Did counsel provide unreasonable performance in obtaining discovery for the
defendant in the case?

Staveley first claims that Attorney Knight rendered ineffective assistance by having him

plead guilty when he had not received or reviewed discovery. (ECF No. 79, at 4) (Ground One).

It is well established that this Court’s scrutiny of defense counsel’s performance must be

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“‘highly deferential.’” United States v. Valerio, 676 F.3d 237, 246 (1st Cir. 2012) (quoting

Strickland, 466 U.S. at 689). In that regard, this Court must presume that Attorney Knight’s

conduct “‘f[e]ll[] within the wide range of reasonable professional assistance,’” unless Staveley

can establish that, given the facts Knight knew at the time of sentencing, his actions were “‘so

patently unreasonable” that “‘no competent attorney’” would have chosen those courses of

action. Id. (quoting Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.2006) (internal quotation marks

omitted)). The government submits that Staveley’s ill-informed, self-serving, and conclusory

assertions about defense counsel’s conduct fall far, far short of establishing that counsel’s actions

were “patently unreasonable.” See McGill, 11 F.3d at 225.

In the main, Staveley’s complaining that Mr. Knight did not provide discovery to him is

patently untrue. Here, as his letter submission makes clear, attorney Knight obtained and

reviewed all of the discovery in the case from the government. Following the Wyatt’s

procedures, he took all the steps he could to ensure that the defendant could access the discovery

from Wyatt. He spent hours reviewing the discovery with the defendant. At this point, there was

nothing further he could do to submit the materials to Mr. Staveley. Thus, nothing here fell short

of Strickland’s reasonableness standard.

(b) Was counsel’s performance in the scheduling of sentencing unreasonable?

Defendant’s second claim (Ground Two) is more difficult to understand. In general, the

claim states that counsel engaged in a “Failure to seek a continuance at sentencing.” The

defendant never makes clear why a continuance should have been sought, or what benefit there

would have been to give one. In any event, on July 14, 2021, Mr. Knight moved to continue the

sentencing. ECF No. 44. That motion was granted on the following day, July 15, 2021.

Sentencing was continued for nearly three months to October 7, 2021. Thus, there was no failure

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to seek a continuance.

The defendant further claims that comments made at the sentencing hearing by the

AUSA were somehow untrue or prejudicial to him. During the proceedings, the defendant had

raised issues relating to his allegations that, several years before the crimes in this case had even

been committed, and while he was serving a sentence in a different case, the defendant had been

sexually assaulted by a correctional officer. During the sentencing hearing in this case, that issue

came up, and the AUSA said:

I don't really think it's appropriate for me in this venue
to talk about the allegations that the Defendant made in the past. All I
would say on that point, your Honor, is reading through
the presentence report, there's a lot of mixed
information on that and it's very unclear. I'm not
saying it didn't happen, I just don't know; and I don't
think the Court can just accept this Defendant's word
that that happened. It may have; if it did, you know,
I'm deeply sorry and I can't imagine how horrible it
is, but there's no factual basis one way or the other.
The thing that's always kind of jumped out to me
about this particular Defendant and, you know, and
different than a lot of other defendants in certain
ways, he seems to constantly be playing the victim and
blaming other people for his conduct. I was really
struck in the presentence report where he told the
Probation Department that he committed this crime of
submitting, immediately when the funds became available
submitting these false loan applications because he was
going through a bad, he was in a bad relationship and
that led to trauma and that led him to make this
decision. And I mean obviously there's no connection between
the two. This crime was just pure greed.

Comments of AUSA Vilker at Sentencing Hearing, ECF No. 69, at 21-22.

The defendant complains that the prosecutor here was calling him a liar about his sexual

assault allegations. That is a misreading of what the AUSA said, which was simply to focus the

Court’s attention on the defendant’s failure to accept genuine responsibility for his crimes.

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There is nothing unreasonable about these comments, and certainly nothing present in them that

would establish that Mr. Knight’s performance fell below the standard of reasonableness.

The defendant’s final two grounds (three and four) can be resolved more quickly:

(c) Was counsel’s performance unreasonable when counsel did not file postconviction
motions that the defendant wanted to pursue, despite counsel only provisionally
representing him?

This claim appears to be much ado about nothing. The defendant complains about Mr.

Knight’s conduct in not filing postconviction motions he wanted filed after sentencing. After the

defendant pled guilty and was sentenced, the First Circuit directed Mr. Knight to continue to

represent the defendant until he was relieved of such duty by the Court of Appeals. (ECF 79 at

p. 89). Not long thereafter, the First Circuit appointed attorney Kara Hoopis Manosh, Esq. to

represent him during the pendency of the appeal. During this time, Mr. Knight ensured that the

defendant’s rights were protected by the proper filing of a notice of appeal in the appellate case.

As stated earlier in this memorandum, the defendant’s appeal was pursued by attorney Manosh,

until it was dismissed without prejudice by the First Circuit. Thus, not only did Mr. Knight

behave reasonably regarding this ground, but there was absolutely no prejudice to the

defendant’s legal interests by anything counsel did.

(d) Did counsel act unreasonably in his billing practices in this case?

The defendant here complains in detail regarding the defendant’s billing in this case. The

payments in this matter seem to have been the simple result of a free bargain agreed to by the

defendant (and his attorney), on terms that were communicated to him by counsel. What is

missing from his complaint is any real allegation that there was any substantive fraud or

deception. Regarding the signature affixed by Mr. Knight, his explanation that he had

authorization to sign the document is reasonable, and in any event the defendant never suffered

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any prejudice by the date on their agreement being filled on a later date.

3. Prejudice. For similar reasons, Staveley cannot succeed on the prejudice prong of

Strickland. To state the obvious, the defendant never points to any way in which Mr. Knight’s

representation was affected by his supposed errors. Noticeably absent from defendant’s petition

is any assertion of what the defendant would have done differently had Mr. Knight not

committed the alleged errors. Defendant does not claim that he would not have pled guilty had

Mr. Knight done anything differently. Nor does defendant now claim that he is innocent or

would like to withdraw his plea of guilty. This is because the evidence against defendant was

absolutely overwhelming, including emails with his co-conspirator discussing the creation of

“bullshit” tax forms, the fact that defendant had no ownership interest at all in one of the

businesses for which he sought a PPP loan and the absence of any defense to the charge that he

fled the jurisdiction and failed to appear in court. None of the alleged errors by Mr. Knight, even

assuming they occurred, caused any prejudice to defendant. Mr. Knight did the best he could for

a defendant faced with insurmountable evidence by negotiating a favorable plea agreement on

defendant’s behalf.

The defendant here was offered and accepted a plea agreement that was much more

lenient than the sentence he would have received after conviction, which would have included (at

a minimum) a consecutive sentence on the §1028A of two years. Had the case gone to trial, he

was looking at a maximum sentence of extreme length. The PSR calculated the defendant’s

guidelines to be a minimum of 70 months and a maximum of 87 months. Given his criminal

history of similar fraudulent offenses, the defendant was extremely fortunate to only be

sentenced to the 56 months he eventually received. Once again, Staveley has failed to overcome

the strong presumption that, based upon what Knight knew at the time, his actions were “‘so

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patently unreasonable” that “‘no competent attorney’” would have chosen them. Valerio, 676

F.3d at 246.

D. Conclusion

For these reasons, Staveley’s § 2255 motion to vacate his conviction should be denied.

Respectfully submitted,

UNITED STATES OF AMERICA
By its Attorney,

ZACHARY A. CUNHA
United States Attorney

/s/ Lee H. Vilker
LEE H. VILKER
TERRENCE P. DONNELLY
Assistant U.S. Attorneys
U.S. Attorney’s Office
One Financial Plaza, 17th Floor
Providence, RI 02903
Tel (401) 709-5000
Fax (401) 709-5001
Email: lee.vilker@usdoj.gov

CERTIFICATION OF SERVICE

On this 1st day of December, 2022, I caused the within Response in Opposition to be filed
electronically and it is available for viewing and downloading from the ECF system. A copy of
the foregoing filing was mailed via First Class mail to the following inmate:

David Staveley
Reg. No. 04230-049
FMC Devens – Camp
P.O. Box 879
Ayer, MA 01432
/s/ Lee H. Vilker________________
LEE H. VILKER
Assistant U. S. Attorney,
U. S. Attorney's Office
One Financial Plaza, 17th Floor
Providence, RI 02903
401-709-5000, 401-709-5001 (fax)

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